Thursday, August 6, 2009

Back in the last days of TSR, the company enacted a rather restrictive Internet policy for fan-based websites that used TSR-copyrighted information. Can anyone confirm if, as a result of this policy, any websites were actually shut down or was this merely a threat that was never acted upon?

The short answer is yes, sites were shut down, but nothing ever went to court (that I know of or was able to find). Essentially letters were sent, so were cease and desist orders, but in the end TSR sort of backed down and tried to create a place for people to upload derivative works: MPG-Net.

The person you might want to talk to is Sean Reynolds. He was hired on as the TSR web person at the time everything was going on. Certainly I recall people talking about cease & desist orders on rec.games.frp.dnd at the time, and I know TSR got a horrible reputation for being stupid about their online policy, but I don't know about how far it went.

"A lot of people badmouthed me for a long time because of that policy, but while I was TSR online coordinator not one website was shut down for D&D material that wasn't an actual copyright violation (such as posting scans of books or artwork) ... nobody was ever bothered by me because of fan material on their site. So, I like to think that I made a difference."

and later

"With Jim[ Butler]'s help, we got the online policy even more relaxed so that people could post their own stuff without worries of being sued or having it taken by TSR/WotC without permission."

That would at least imply to me that prior to that there had been people who were actually sued (or at least sent a C&D) for posting fan material.

I've been wondering about this now with all the old-school renaissance materials.

For example, my understanding of TSR/WoTC policy for most of the past 20 years has been that if I published (free or not) something like Labyrinth Lord that was so clearly a Dungeons and Dragons derivative work, I would surely be hearing from their lawyers. Heck, I thought even character sheets with the six D&D stats would get a letter on legal letterhead.

Even with the d20 OGL, I thought the older material and game mechanics were not included and still verboten.

So are old-school renaissance writers/publishers just slipping under Hasbro's copyright radar for now? Or is this allowed now due to the OGL?

The difference with that is the lawsuit by WoTC is for blatant copyright infringment, not just for creating derivative works. So it's not a fair comparison.

Also, forgot to mention... you could find entire works, such as scans of adventures, on BBSes before the Internet even came along. The real difference is that the technology's better for wider distribution now.

So are old-school renaissance writers/publishers just slipping under Hasbro's copyright radar for now? Or is this allowed now due to the OGL?

I believe that something like Labrynth Lord is OK because the rules themselves cannot be copywritten, it's the how the rules are stated. As long as an OSR author doesn't steal things verbatim they are OK. At least that's my understanding :)

It's a violation of copyright for someone to publish a derivative work of copyrighted material. That's any work based on prior art. Thus, all the fan fiction for Star Wars or Harry Potter is derivative work.

RPGs, by their very nature, essentially demand the end user to create derivative materials and "publish" (share them with others) them. Arguably from the first time anyone created their own dungeon and ran it for their friends, a copyright violation incurred.

What the Internet allowed people to do was "publish" their "derivative works" on a much greater scale than they ever had before. But really, these end users weren't doing anything that they hadn't done before the Internet.

Of course any actual court case against anyone simply posting campaign notes or home-spun adventures and the like could never succeed.

There's consent from the publisher all over the place in those old products; the game quite literally directs you to create your own adventures, worlds, characters, spells, etc., and then share them with as many friends as you can.

Actually, the main site that was shut down was the ftp site greyhawk.stanford.edu. There was a ton of stuff on there, a lot of it fan created. Much of the stuff there would have been covered under today's OGL. There were some images up there, I am not sure of the sources they were scanned from. There was fan created work which referenced T$R settings. Were they copyright infringements? We'll never know because they never went to court on the claims. The problem was that the cease and desist letters sent resulted in the sites being closed down and much material being lost. There was an effort to save as much as we could from the sites, but much was lost, unfortunately.

Back then remember T$R's position was that anything that had any reference to D&D was their property---in other words, if I uploaded a character sheet to the site for others to look at, it was a copyright violation.

Scanning was not that prevalent back then like it is now. It wasn't like you could get the phb of dmg from those sites, from what I recall. At least not the main ones.

After the closing down of the ftp sites, they eventually allowed us to put stuff up on mpg.net, I think it was. But a lot was lost forever. Plus people didn't trust T$R at that point and so many people didn't upload their stuff.

Sean K Reynolds was the online rep who stepped in and handled the situation after the cease and desist letters were sent out and the sites were closed. The former rep---Rob Repp was it? was the guy who we all hated. Sean came onboard when we were all furious and took a lot of crap. But he calmed the place down and not too many people had bad things to say about him. I owe him a beer for all the crap I gave him back then.

Chris: a derivative work is a version of the original work; in the sense that a movie might be based on a book, or in the sense that a translation is based on the original language version.

An adventure is not a derivative work of the game rules it was written for, and wouldn't be a derivative work even if game rules were able to be copyrighted. They're more commonly termed "compatible" works, and compatible works are perfectly legal.

I did a lot of research into games and copyright a few years ago and summarized it on Gamers & Copyright.

A while ago (when WotC claimed that "Drow", a scandinavian word for an elf of dark complexion, was going to be in the Product Identity section of the GSL) I read through the material that AWizardInDallas linked to, also known as "TSR vs The Internet".

Since all the sources I could find for it were painfully formatted I took the time to reformat for my own reading. I put it up in my webspace so that others could benefit from a version that's more easy on the eyes: TSR vs The Internet.

It's instructive reading. I gather that there was a "fansite policy" that essentially said only things posted at one site in partnership with TSR would be safe, and everything needed to be transferred there and released under a specific license. The trouble came when TSR started transferring stuff whose authors were no longer online or reachable for permission, and authors who flat-out rejected the license. Vast quantities of material were lost into the digital black hole because that material wasn't legal for the new site to host.

"I read through the material that AWizardInDallas linked to, also known as 'TSR vs The Internet'."

You know, just reading the very last page of that compilation gives an amazing sense of deja-vu. The TSR online response of 1994-5 is achingly similar to the WOTC GSL project of 2008-9.

In both cases you have basically a nonsensical position by the company. You've got requests for clarification that go unanswered. You've got friendly claims that a list of clarifying terms will be presented "soon", but the company's other urgent deadlines and projects are delaying it indefinitely. Kind of fascinating.

"Actually, it is because there were also people scanning and posting entire books as well, it just wasn't as easy or widespread as it is today, nor were there sites such as 'scribd.'"

Scribd was so &%*#-ing awesome! From there, I found tons of classic D&D books, models, and magazines! As well as old Arduin Grimoire and Judges Guild stuff! I also found a lot of other interesting out-of-print games there! To bad WotC came along and ruined all the fun - just to get at a few guys who was hosting 4e books before they got released! >:(

They could have ignored the old stuff and just focused on the new stuff, but nooo... They shout EVERYTHING down!!! When they got finished with us, they moved on to RPGNow and DriveThruRPG - and that was non-pirated content!

Well, it was fun while it lasted, and hat off the the folks who's users got deleted - including myself. ;)

Chris T:"It's a violation of copyright for someone to publish a derivative work of copyrighted material. That's any work based on prior art. "

That is not a good definition of 'derivative work' IMO. 'Prior art' is a Patent law term.

Jerry:"Chris: a derivative work is a version of the original work; in the sense that a movie might be based on a book, or in the sense that a translation is based on the original language version.

An adventure is not a derivative work of the game rules it was written for, and wouldn't be a derivative work even if game rules were able to be copyrighted. They're more commonly termed "compatible" works, and compatible works are perfectly legal.

I did a lot of research into games and copyright a few years ago and summarized it on Gamers & Copyright.

Jerry"

This fits my understanding of US copyright law - I teach UK copyright law for a living at a London University. TSR did not have much of a case; indeed the in-house lawyer I once spoke to didn't seem to fully understand the difference between trade mark and copyright law. Although years later someone else told me ancedotally that they did really, but were just acting under Lorraine Williams' directions on IP policy.

Scribd was so &%*#-ing awesome! From there, I found tons of classic D&D books, models, and magazines! As well as old Arduin Grimoire and Judges Guild stuff! I also found a lot of other interesting out-of-print games there!

As far as whether TSR was on any real legal ground, it's hard to say--there's been no clear ruling in a USA court about whether something like an RPG adventure is a derivative work of an RPG game system. Which means that it probably would come down to which side had the most money to hire the best lawyers.

Which is why Ryan Dancey pushed so hard for the creation of the OGL--he wanted to make sure that there was a 100% legal way for people to make and share D&D-compatible material, regardless of someone higher up in the corporate chain who wasn't a gamer and was only interested in profit. The OGL is a license that protects 3e gamers from litigation by providing a free, legal license to create new 3e material--forever.

Which is why Ryan Dancey pushed so hard for the creation of the OGL--he wanted to make sure that there was a 100% legal way for people to make and share D&D-compatible material, regardless of someone higher up in the corporate chain who wasn't a gamer and was only interested in profit. The OGL is a license that protects 3e gamers from litigation by providing a free, legal license to create new 3e material--forever.

Which is why I will never cease to sing the man's praises on this particular point. What he (and those who assisted him) did was a remarkable gift to the hobby and every one of us in the old school community are in his debt.

seankreynolds:"there's been no clear ruling in a USA court about whether something like an RPG adventure is a derivative work of an RPG game system. Which means that it probably would come down to which side had the most money to hire the best lawyers."

The precedents are all against it. For one thing, RPG systems - as systems, ie game rules and formulae - are excluded from copyright under Berne & US Law. For another, a 'derivative work' is a much narrower idea than you seem to think.

Whether a novel set in the Forgotten Realms, although featuring an original cast of characters, is a derivative work; or whether an sf story featuring Darth Vader and the Enterprise in a wormhole universe is a derivative work, is the kind of thing where having the expensive lawyers helps. The Wind Done Gone case is not encouraging for such claims, though, if the defendant has created something original and is willing to fight.

WotC has a new fan site webkit which comes with a rather restrictive agreement that you would have to abide by if you want to use this kit - which is basically just some copyrighted images and logos. Here is the link.

While you do not have to use this kit or abide by their conditions if you do not, it is certainly germane to this discussion and an illuminating look at how many restrictions WotC would put on web sites posting fan created materials. Note that you cannot freely distribute adventures if you use the webkit, along with a host of other restrictions.

Re: Carl's link: "Please note that this Fan Site Policy does not allow you to publish, distribute or sell your own free-to-use games, modules or applications for any of Wizards' brands..."

So WTF are you supposed to put on your fan site? It's like droolingly lobotomized, seriously.

"The 'suits' in Wizards' legal department require us to tell you that Wizards Materials in the Tool Kits are for your personal Fan Site use only..."

And WTF is all the language like that? Is this a legal agreement, or freaking raw gossip?

That's so poorly written that several someones deserve to lose their job over that. It hurts my eyes to read it. It's like a 5th grader acting out the the writing of a "contract" like his daddy the lawyer.

I just cannot believe the raw excrement that comes out of WOTC these days. Enough with the "Scott Rouse is a wonderful guy, he's trying so hard, he means well, it's not his core job" bullshit. Please, just stop publishing the line and be done with it. For God's sake.

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